Kenya, the next surveillance state?

Legislators in Kenya will shortly make a decision with significant ramifications for the privacy and free expression rights of Kenyans. On International Human Rights Day (December 10), the Kenyan Parliament cynically introduced the Security Laws (Amendment) Bill (2014), which contains several sweeping and deeply worrying changes to the country’s surveillance laws.

A similar bill was proposed in July, though it stalled due to opposition. Parliament is currently considering the legislation in two sessions to discuss comments submitted by the public, after which lawmakers could vote on the bill.

If passed, the Security Bill will greatly expand the government’s authority to conduct surveillance without a warrant. It will also place new restrictions on expression, including criminalizing statements “likely to be understood” as encouraging acts of terrorism. The vague language of the legislation would grant Kenya’s security forces broad unchecked authority in a country where recent laws and policies have already placed user rights at risk.

Access strongly urges the Kenyan Parliament to reject the Security Law (Amendment) Bill when it comes up for a vote. Instead, Kenya should develop a comprehensive privacy law to further protect fundamental rights in Kenya.

Losing judicial oversight

The 90-page Security Bill would amend a number of Kenyan laws. One of the most noteworthy provisions is Article 66 on Covert Operations, which would permit extrajudicial surveillance. If enacted, the Director-General of the National Intelligence Service could order a “covert operation,” without court approval or review to enter any place, or to search or seize any record or communication. In fact, the bill would grant broad authority to “do anything considered necessary to preserve national security.”

This national security provision would be nearly limitless and flies in the face of international human rights law. Each act under the covert operation provision would remain valid for 180 days unless extended by the Director-General. There are no provisions for public accountability or oversight, the language would replace the existing section of the National Intelligence Service Act, which currently requires government agents to get a warrant from a judge of Kenya’s High Court when there is reasonable grounds to investigate terrorism.

The International Principles on the Application of Human Rights Law to Communications Surveillance, endorsed by more than 400 civil society groups, provide a comprehensive guide to crafting rights-based surveillance laws and illustrate the importance of judicial oversight in determining whether the government has met its burden to conduct surveillance. The Principles require communications surveillance activity to be approved by an independent, impartial, and competent judicial authority. Judges ensure there is adequate evidence for an interference with user privacy to be warranted, uphold rights, and protect against abuses of power. Unchecked surveillance is particularly ripe for abuse, and Access is deeply concerned about removing this important check on government surveillance in Kenya.

Freedom of expression

The bill would also place direct restrictions on free expression. Article 75 of the Security Bill would amend the Prevention of Terrorism Act, by creating new crimes restricting the free exercise of human rights. The amendment would not only make it illegal to issue statements “likely to be understood” as encouraging terrorism — it would outlaw the broadcasting of information that could “undermine” a terrorist investigation, greatly limiting the ability of journalists to report on counter terrorism efforts and potentially expose them to jail time.

New restrictions, same story

Article 31 of the Kenyan Constitution provides: “Every person has the right to privacy, which includes the right not to have . . . the privacy of their communications infringed.” The Security Bill is the most recent effort to limit privacy by expanding Kenya’s surveillance authorities. In a significantly under-reported story, Kenya’s telecommunications regulatorannounced new regulations in January that grant it unfettered access to user’s private information without a court order.

The government is also reportedly moving ahead with a massive database project designed to collect and store the name, age, relatives, property owned, and residence of everyone living within Kenya. According to an official, the government expects to catalogue 70 percent of the country by June 2015. The government hopes to recover the costs of implementing this project by commercializing the database and has already partnered with the private Association of Kenya Credit Providers. Once completed, the database will drastically reduce the privacy of anyone living in Kenya. Their private information will not only be immediately vulnerable to the whims of government and private corporations, the database will also be a prime target for malicious actors, risking the security of everyone living in Kenya.

Outlook for the future

Despite the gloomy outlook, there is still the potential for positive developments for human rights in Kenya. Parliament has an immediate opportunity to reject the proposed Security Law (Amendment) Bill. The Supreme Court also enjoys the ability to overturn laws that conflict with the Constitution. And a recent report released in Kenya reveals growing dissatisfaction with the bill’s assault on human rights.

But time is running out. Access urges Parliamentarians to reject the bill. Instead, the government should restore human rights by developing a comprehensive privacy bill to protect Kenyans.

photo of entrance to Kenyan parliament by Jorge Lascar on a CC License

This article was originally published on Ephraim’s professional page onAccess Now.